Rulemaking

“ Every law is a command, not only, but the command of a supreme authority; and it would be a singular contradiction in terms to speak of this supreme power as limited by law. How can the supreme author of law within a state himself be subject to law: how can the creature bind the creator? How can one refrain from smiling at the logical incapacity of those who speak of limitations to sovereignty, or, more absurdly still, of divisions of sovereignty?65 Is there a hierarchy of supremacies: can there be a co-ordination of creators? ”

“ Let the sixteenth be that which we term the royal or political motion, by which the predominant and governing parts of any body check, subdue, reduce, and regulate the others, and force them to unite, separate, stand still, move, or assume a certain position, not from any inclination of their own, but according to a certain order, and as best suits the convenience of the governing part, so that there is a sort of dominion and civil government exercised by the ruling part over its subjects. ”

“ The Rulers, as well as all other Individuals, with all their individual powers, are taken into account in order to direct the powers of the governed,—who no more than they constitute the State,—towards the common purpose, so far as they understand it, and to enforce this purpose on all who are opposed to it. ”

“ To ask why I am to submit to the power of the state, is to ask why I am to allow my life to be regulated by that complex of institutions without which I literally should not have a life to call my own, nor should be able to ask for a justification of what I am called on to do. ”

“ We have seen the Reins of Government put into the Hands of a Faction, and that Authority which was design'd for the Protection of All, exercis'd by a Few of the Worst, to the oppression of the Best and Greatest number of our Subjects. ”

“ When I shall have loyally caused to operate all the means which have been left to me, no reproach can be aimed at me, and the nation, whose interest alone ought to serve as rule, will explain itself by the means which the constitution has reserved to it. ”

“ The power of governing others, possessed by the Ruler,—of legislating for them, particularly of legislating for them through the agency of others, became an object of ambition, and in proportion as the capacities of those who were at first willing and obedient subjects were developed, they must have begun to regard with envious eyes the power of government exercised over them by other men. ”

“ But I do mean to say that as an individual who conducts himself wisely must make laws for himself which at some time or other may appear irksome or injurious, but which, precisely at the time they appear most irksome, it is most necessary he should obey, so a nation which means to conduct itself wisely, must establish authority over [Pg 20] itself, vested either in kings, councils, or laws, which it must resolve to obey, even at times when the law or authority appears irksome to the body of the people, or injurious to certain masses of it. ”

“ Legislation, the enactments of a legislature which, whether it take the form of an autocratic prince or of a parliamentary assembly, is the assumed organ of the entire society, is the last of the ameliorating instrumentalities. It differs from Legal Fictions just as Equity differs from them, and it is also distinguished from Equity, as deriving its authority from an external body or person. Its obligatory force is independent of its principles. ”

“ No being is fit to rule, govern, and dictate, until he has been controlled, governed, and dictated,—has yielded obedience to law, and proved himself worthy, by magnifying the law that was over him, to be master of that law. ”

“ In him, and in your Council, is lodged the power of making laws. You have Judges, who are to decide every cause affecting your lives, liberty or property. Here is, indeed, an appearance of the several powers being separated and distributed into different hands, for checks one upon another, the only effectual mode ever invented by the wit of men, to promote their freedom and prosperity. ”

“ Can any measures furnish a more instructive lesson, or a more salutary admonition, in the whole history of parties, at once to moderate our zeal, and awaken our vigilance, than those, which stand upon principles repudiated at one time upon constitutional scruples, and solemnly adopted at another time, to subserve a present good, or foster the particular policy of an administration? ”

“ To create a better leadership of men,—to form a new order and union of men,—a new nobility of men, acquainted with the doctrine of their own nature, and in league for its advancement, to seize the 'thoughts' of those whose law is the law of the larger activity, and 'inform them with nobleness,'—was the plan. ”

“ This claim, wild as it may seem, this claim, which supposes dominion without authority, and subjects without subordination, has found among the libertines of policy many clamorous and hardy vindicators. The laws of Nature, the rights of humanity, the faith of charters, the danger of liberty, the encroachments of usurpation, have been thundered in our ears, sometimes by interested faction, and sometimes by honest stupidity. ”

“ A true Whig is of Opinion, that the Executive Power has as just a Title to the Allegiance and Obedience of the Subject, according to the Rules of known Laws enacted by the Legislative, as the Subject has to Protection, Liberty and Property: And so on the contrary. ”

“ It is sufficient to establish that there are certain definite limits which circumscribe the free action of every governing authority, and that these limitations admit of being formulated into more or less precisely articulated propositions. Such propositions, capable as they are of being handled, interpreted, and enforced, in courts of justice, have all the essential qualities that belong to the general rules framed by the governing authority itself, for the guidance of the conduct of all persons submitted to its dominion. ”

“ They are the expressions in which it becomes real. As conflicting with the momentary inclinations of the individual, these institutions are a power which he obeys unwillingly; which he has to, or is made to, obey. ”

“ But a sound centre of authority being what, in this disquisition, we have been led to seek, and right reason, or our best self, appearing alone to offer such a sound centre of authority, it is necessary to take note of the chief impediments which hinder, in this country, the extrication or recognition of this right reason as a paramount authority, with a view to afterwards trying in what way they can best be removed. ”

“ Who does not see that there is no empire, kingdom, dukedom, republic, state, or household, that is not established by laws, which constitute the order and so the form of its. government? In each of them the laws of justice are in the highest place, political laws in the second, and economical laws in the third. ”

“ In legislating for a Government like ours, where many of our most valuable institutions are founded on experiment, the best informed minds could not, in the earlier progress of things, determine with reasonable certainty upon the regulations and rules of action best suited to the circumstances of society, and the permanent good of the country. Experience alone can develop the fitness of measures, and the salutary or pernicious influence of particular laws. ”

“ By organization and arrangement the occasions of disorder are avoided. Quarrels are obviated by not permitting crowds, jostling, and collisions. Dishonesty is checked by want of opportunity; remissness, by the watchful eye and by definite tests of performance.
7. The awe and influence of authority are maintained by a certain formality and state. Forms and ritual are adapted to all the operations of law: persons in authority are clothed with dignity and inviolability. The greater the necessity of enforcing obedience, the more stern and imposing is the ritual of authority. ”

“ And if Power comes down upon us, and with no questions asked or answers given, sets us rules or orders, and compels us to obey, and forces and punishes us till we do; what follows? Is this good for the one who is under rule? ”

“ The ancient commonwealths thought themselves entitled to practise, and the ancient philosophers countenanced, the regulation of every part of private conduct by public authority, on the ground that the State had a deep interest in the whole bodily and mental discipline of every one of its citizens ”

“ In the nineteenth century, then, legal and political philosophers were agreed that the end of the legal order, the purpose of political organization and purpose of lawmaking, were to secure and maintain individual liberty. ”

“ As to the share of power, authority, direction, which each individual ought to have in the management of the state, that I must deny to be amongst the direct original rights of man in civil society."—Ibid. ”

“ At last peoples have become conscious of their relations to the highest powers of the State, and have sought to give permanence and certainty to those relations by setting the conditions of their subordination fast in stubborn practices or in the solemn covenants of written documents. A constitution government has always had; but not until this latest age these deliberate formulations of principle and practice which determine the whole organization and action of the State, the domain of authority, the neutral territory85 of liberty, the postulates of obedience. ”

“ Their purpose, however, is equally answered, by pushing forward this unhappy figure, and forcing it to bear the odium of measures, which they in reality direct. Without immediately appearing to govern, they possess the power, and distribute the emoluments of government as they think proper. ”

“ I mean to inquire if, in the civil order, there can be any sure and legitimate rule of administration, men being taken as they are and laws as they might be. In this inquiry I shall endeavour always to unite what right sanctions with what is prescribed by interest, in order that justice and utility may in no case be divided. ”

“ Whatever form it takes,—monarchic, oligarchic, or democratic,—royalty, or the government of man by man, is illegitimate and absurd.
Man, in order to procure as speedily as possible the most thorough satisfaction of his wants, seeks RULE. In the beginning, this rule is to him living, visible, and tangible. ”

“ Classical conventionalism shows us everywhere, behind passive society, a hidden power, under the names of Law, or Legislator (or, by a mode of expression which refers to some person or persons of undisputed weight and authority, but not named) , which moves, animates, enriches, and regenerates mankind. ”

“ Now the argumentation which is divided into five divisions is of this sort:—It is desirable, O judges, to refer all laws to the advantage of the republic, and to interpret them with reference to the general advantage, and according to the strict wording according to which they are drawn up. For our ancestors were men of such virtue and such wisdom, that when they were drawing up laws, they proposed to themselves no other object than the safety and advantage of the republic ”

“ Let me single out two excellent institutions, not [Pg 322] wholly American,—The contrivance for making laws, and that for executing them. To make laws, the people choose the best men they can find and confide in, and set them to this work. They aim to take all the good of past times, of the present times, and add to it their private contribution of justice. ”

“ We can see the policeman on his beat, or the judge in court, or the members of the legislature—the men who, respectively, maintain, administer, and make the laws; and we can see the record of the laws in books. But the idea or principle of Law which has caused men to construct all this machinery for the making and enforcing of the laws, exists only in the mind. ”

“ All these regulations are important and worthy to be remembered, that the learned statesmen who regulate the affairs of civilized governments may be informed of them, and may feel astonished at the knowledge that a barbarous people without letters should have been found to have had institutions such as we know that they possessed, both with reference to internal polity and to their plans of extending their dominion over other nations. ”

“ The powers, therefore, belonging to any branch of our government, are to be construed and settled, not by remote analogies drawn from other governments, but from the words of the grant itself, in their plain sense and necessary import, and according to an interpretation consistent with our own history and the spirit of our own institutions. ”

“ It is with reference to these words that Mr. Justice Story remarks that “constitutions of government do not turn upon ingenious subtleties, but are adapted to the business and exigencies of human society; and the powers given are understood in a large sense, in order to secure the public interests. ”

“ The home, the school, the church, the club, business, profession, trade, and union, all insist on strict, correct conformity to standard; all demand authoritatively implicit obedience and submission to rule and regulation. ”

“ In every country, and at all times, an order of things may be conceived—civil, political, penal and administrative laws—which would best conform to the general interest, and be the most favourable to the well-being and progress of the nation. ”

“ The solution of the difficulty in which the mind becomes involved when considering these most serious questions, seems reduced to a single proposition—that all strifes, difficulties and controversies regarding government and its administration, arise from the fact, that the governing power is not general but specific in its operations, or that the powers governed are not subservient to a common law of control. ”

“ The only exercise of sovereign power, properly so called, is in legislation, and there is no proper act of legislation except when the whole people comes to a decision with reference to the whole people. Then the matter decided on is as general as the will which decides on it ”

“ That which regulates the nature and form of the body politic; which establishes the relation that each individual bears to it, and the rights and duties growing out of that relation, which determines the principles on which it exercises authority over him; and settles a system of jurisprudence by which it operates to protect and enforce right, and to redress and punish wrong.
2. That which determines the relations of individual members of society to each other; which defines the rights growing out of that relation ”